BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002206 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his undesirable discharge in two separate applications.

2.  He states he was in a horrible car accident which caused him undiagnosed mental problems.  The crippling pain, coupled with the medication he was prescribed, created confusion and was the reason he was absent without leave (AWOL).  He adds that had his injuries been properly treated, he would not have been AWOL.

3.  He did not provide any additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  His military personnel record shows he enlisted in the Regular Army on 16 June 1971 for 2 years.

3.  On 3 December 1971, he received nonjudicial punishment (NJP) for going AWOL on 1 November and remaining so absent until 1 December 1971.

4.  His record contains Summary Court-Martial Order Number 94, dated 23 March 1972.  This order shows he pled guilty and was found guilty of being AWOL from 23 December 1971 to 22 February 1972.  He was sentenced to military confinement and reduction in grade.

5.  His complete military medical record is not available for review; however, it does contain a Standard Form 88 (Report of Medical Examination), dated 1 March 1972.  This document shows he was cleared for separation from the Army.  The clinical evaluation showed he sustained an injury to the lower third of his left forearm as a result of an accident [type not specified].  There was deformity and limitation of functionality noted.

6.  A DD Form 458 (Charge Sheet), dated 22 June 1972 shows he was charged with one specification of being AWOL from 10 April to 17 June 1972.

7.  On 22 June 1972, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant stated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He also stated he wanted the discharge because he could not stand the Army and anyone in it.  If he were made to stay in the Army, he would cause more trouble and would keep being AWOL.  He noted that in addition to his two prior convictions in the Army, he was pending a civil court date.

8.  He also stated he understood he could be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate.  He added he understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits he might be eligible for, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also understood he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

9.  Prior to completing his request for discharge, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on 22 June 1972 and was fully advised of the nature of his rights under the UCMJ.
10.  The applicant's chain of command unanimously recommended approval of his request for discharge and issuance of an Undesirable Discharge Certificate.

11.  In July 1972, the applicant signed a Statement of Medical Condition acknowledging that there had been no change in his medical condition since his separation examination on 1 March 1972.

12.  On 21 July 1972, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of an Undesirable Discharge Certificate and reduction to the grade of private/E-1.

13.  Accordingly, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 25 July 1972 under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 10 months and 19 days of net active service and accrued 81 days of lost time due to military confinement and AWOL.

14.  His record does not contain any evidence the applicant performed any acts of valor or was given any special recognition.  It also does not show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Paragraph 3-7b of Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded because he suffered mental confusion caused by a car accident which ultimately led to his periods of AWOL was carefully considered; however, it lacks merit.

2.  The evidence of record shows he received NJP for being AWOL from his unit and a summary court-martial also for being AWOL.  There is no indication in the available records to show his physical injuries caused his actions.  He stated in his voluntary request for discharge that if he were made to stay in the Army he would continue to cause problems and would continue to be AWOL.

3.  Notwithstanding the above, the evidence further shows the applicant was charged with an offense for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face trial by court-martial, he opted to submit a request for discharge for the good of the service.  The applicant's discharge was approved and he was discharged accordingly.

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20110002206



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ABCMR Record of Proceedings (cont)                                         AR20110002206



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